No. 58803 

SEP 19 ?ti13 

TA1T-77.11T.< -

129 Nev., Advance Opinion to I 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

THE STATE OF NEVADA, PRIVATE 

INVESTIGATOR'S LICENSING 

BOARD, 

Appellant, 

vs. 

DWAYNE TATALOVICH AND 

TATALOVICH & ASSOCIATES, INC., 

Respondents. 

Appeal from a district court order granting a petition for 

judicial review of a Private Investigator's Licensing Board decision. First 

Judicial District Court, Carson City; James E. Wilson, Judge. 

Affirmed. 

Catherine Cortez Masto, Attorney General, and Jeffrey D. Menicucci, 

Deputy Attorney General, Carson City, 

for Appellant. 

Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno, 

for Respondents. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, PICKERING, C.J.: 

On this appeal, we consider whether investigative work 

undertaken for the purpose of developing and giving expert opinion 

testimony in a Nevada civil court case requires a Nevada private 

/3- ,971415 
investigator's license. We agree with the district court that it does not and 

therefore affirm. 

I. 

Respondent Dwayne Tatalovich was hired as an expert 

witness in two Nevada civil court cases. The plaintiffs in each case sought 

damages for injuries due to criminal acts that allegedly would not have 

occurred but for the property owner's negligent failure to provide adequate 

premises security. To prepare for the first case, Tatalovich inspected the 

crime scene and took measurements and photographs. For the second 

case, he again examined the crime scene, then reviewed all security 

measures and devices and reconstructed the crime. Tatalovich holds an 

Arizona private investigator's license. From his office in Arizona, he ran 

background checks on federal and state Internet databases. Tatalovich 

used his research to formulate his expert opinions for each case. 

Based on this work by Tatalovich, appellant State of Nevada, 

Private Investigator's Licensing Board (Board) cited him for engaging in 

the business of a private investigator without a Nevada license in violation 

of NRS 648.060. The district court dismissed the citation. It held that 

Tatalovich's investigative activities were incidental to his formation of 

expert testimony and, as such, fell outside NRS Chapter 648's licensing 

scheme. 1 

'The Board also cited Tatalovich for working without a license as a 

security consultant under NRS 648.0155, but the district court overruled 

the Board because it found that Tatalovich merely gave opinion testimony 

and did not engage in any of the statutorily enumerated activities. 

Because the Board does not appeal this finding, we do not address it. 

2 
This court defers to an agency's findings of fact, as well as to 

its conclusions of law, where those conclusions are closely related to the 

agency's view of the facts. State Indus. Ins. Sys. v. Bokelman, 113 Nev. 

1116, 1119, 946 P.2d 179, 181 (1997). However, if the petitioner's 

substantial rights have been prejudiced by the agency's decision and that 

decision rests on an error of law, exceeds its powers, or is clearly 

erroneous, arbitrary, capricious, or an abuse of discretion, this court may 

set it aside. NRS 233B.135(3), Cable v. State ex rel. Emp'rs Ins. Co. of 

Nev., 122 Nev. 120, 126, 127 P.3d 528, 532 (2006); Dredge v. State ex rel. 

Dep't of Prisons, 105 Nev. 39, 43, 769 P.2d 56, 58-59 (1989). In construing 

a statute, this court considers the statutory scheme as a whole and avoids 

an interpretation that leads to absurd results. City Plan Dev., Inc. v. 

Office of Labor Comm'r, 121 Nev. 419, 434-35, 117 P.3d 182, 192 (2005). 

Our analysis begins with the text of the licensing statutes. 

NRS 648.060 provides that "no person may: (a) Engage in the business of 

private investigator, private patrol officer, process server, repossessor, dog 

handler, security consultant, or polygraphic examiner or intern or (b) 

Advertise his or her business as such,. . . unless the person is licensed 

pursuant to this chapter." NRS 648.060(1) (emphasis added). "Private 

investigator" is defined by NRS 648.012, which reads as follows: 

[A]ny person who for any consideration engages in 

business or accepts employment to furnish, or 

agrees to make or makes any investigation for the 

purpose of obtaining, information with reference 

to: 

1. The identity, habits, conduct, business, 

occupation, honesty, integrity, credibility, 

knowledge, trustworthiness, efficiency, loyalty, 

activity, movement, whereabouts, affiliations, 

3 
associations, transactions, acts, reputation or 

character of any person; 

2. The location, disposition or recovery of 

lost or stolen property; 

3. The cause or responsibility for fires, 

libels, losses, accidents or damage or injury to 

persons or to property; 

4. Securing evidence to be used before any 

court, board, officer or investigating committee; or 

5. The prevention, detection and removal of 

surreptitiously installed devices for eavesdropping 

or observation. 

The question presented is whether these statutes vest the 

Board with the authority to regulate expert witness work. The Board 

maintains that the statutes encompass a wide range of activities and that 

expert witnesses may not personally investigate facts in Nevada unless 

they hold a Nevada private investigator's license. By extension, the Board 

argues that conducting any activity in Nevada that is investigatory in 

nature constitutes a private investigation for which NRS 648.060 requires 

a license. Tatalovich counters that, as a matter of law, expert witnesses 

need not hold a Nevada private investigator's license to research their 

cases. 

The Board's reading of the licensing statutes gives them 

greater reach than their text and evident purpose allow. To be sure, the 

language "engage in the business of," NRS 648.060(1)(a); see NRS 648.012, 

is neither defined nor self-limiting. But NRS 648.060(1)(b)'s reference to 

"[a]dvertis[ing one's] business as such" suggests that the statute regulates 

those who solicit and accept employment for the purpose of providing the 

professional services named, not just anyone who incidentally undertakes 

activities also commonly performed by those professionals en route to 

4 
providing a different service—here, forensic consulting or expert opinion 

testimony. 

Licensing requirements "protect the public safety and general 

welfare" of the public by restricting the activities of unlicensed or 

unqualified individuals who claim but do not possess the skills required of 

a professional in that field. NRS 648.017; see also NRS 622.080 

(regulating an occupation or profession is for the "benefit of the public"). 

NRS Chapter 648 governs professionals providing a primary service to 

clients who either rely or act upon that ,service for their own safety or 

welfare or that of their clients, patrons, or families. 2Given this focus, it 

makes sense for these professionals to be licensed and regulated by the 

Board. However, no similar purpose is achieved by extending the 

licensing requirement to expert witnesses such as Tatalovich, the validity 

of whose qualifications and work is tested—and contested—in court. 

Kennard v. Rosenberg, 273 P.2d 839 (Cal. Ct. App. 1954), is on 

point. In Kennard, an attorney hired a retired fireman and two 

chemists—none of whom held a private investigator's license—to testify as 

experts in a lawsuit over the cause of a fire. Id. at 840. The experts 

inspected the site of the fire, took samples, ran chemical tests, reviewed 

photographs, and conducted chemical experiments. Id. at 840-41. The 

court concluded that the California private investigator's licensing statute, 

2For example, a private patrol officer provides security to protect 

others and their property, prevent property loss or theft, or recover lost or 

stolen property. NRS 648.013. A person who hires a repossessor relies on 

the person to recover personal property subject to a security interest. NRS 

648.015. And an employer relies on a security guard for personal and 

property protection. NRS 648.016. 

5 
which closely resembles Nevada's, did not apply to experts employed "to 

make tests, conduct experiments and act as consultants in a case 

requiring the use of technical knowledge." The object of the experts' 

activities was to gather information to form their opinions, not private 

investigation. Id. at 842. 

The Board notes that, in Kennard, the experts held California 

licenses in their fields of specialty, just not private investigator's licenses. 

It characterizes Tatalovich's activities, by contrast, as pure private 

investigation, not subject to other licensing schemes. But this distinction 

does not diminish Kennard's persuasiveness. In the first place, the Board 

ignores the fact that Tatalovich ran the background checks in Arizona, 

where he holds a private investigator's license. 3Second, an expert may 

well need a professional license in a particular field to testify credibly—or 

at all—in a particular area. See also Wright v. Las Vegas Hacienda, Inc., 

102 Nev. 261, 720 P.2d 696 (1986) (noting that NRS 50.275 does not 

impose a licensing requirement on expert witnesses). But the question is 

whether experts must also have a private investigator's license to gather 

information needed to develop or support their testimony. It may be, as 

the Board argues, that the risk of illegal or unethical activities does not 

vanish just because it is the predicate for expert opinion testimony, as 

3The Board argues that the background check effectively occurred in 

Nevada because it accessed information from Nevada databases. But an 

Internet search that utilizes a Nevada database open to anyone with 

appropriate access does not, by itself, subject the user to the Board's 

control. 

SUPREME COURT 

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opposed to more direct use. 4Nonetheless, work by forensic experts, even 

work not subject to other professional licensing requirements, is not 

unregulated. It is limited by the rules of the court, the judge's approval of 

the expert's qualifications to provide the opinion, and the judge's 

determination of what testimony, if any, to allow. Cf. Baggerly v. CSX 

Transp. Inc., 635 S.E.2d 97, 104 (S.C. 2006) ("We refuse to endorse an 

interpretation of the [local] professional engineer licensing statute which 

has the potential of either preventing out-of-state experts from testifying 

in South Carolina courts or imposing the unreasonable burden of getting 

licensed in the State simply to be permitted to provide forensic 

testimony."). 

The Board's reading of NRS 648.012 and NRS 648.060 would 

capture conduct far afield from private investigation. For example, a 

journalist who searches public records for a news story on a politician 

could be acting as a private investigator by obtaining "information with 

reference to [a person's] identity, habits, conduct. . . honesty, integrity." 

NRS 648.012(1). 5Is a plumber who inspects a drain to determine whether 

4The Board notes but does not develop the argument that NRS 

648.012(4) refers to "[s]ecuring evidence to be used before any court, 

board, officer or investigating committee," as work requiring a private 

investigator's license. The 2013 amendments to NRS 648.012 convince us 

that this subsection applies to work undertaken for the purpose of 

gathering direct evidence, not work undertaken by an expert witness as 

the basis for his or her opinion testimony. See infra note 6. 

5In 2009, the Legislature conducted hearings on whether NRS 

Chapter 648 regulates all investigative activities, without regard to 

purpose or scope. Some of the examples in the text are drawn from those 

hearings. See Hearing on S.B. 265 Before the Assembly Comm. on 

Commerce and Labor, 75th Leg. (Nev., May 15, 2009) (statement of 

continued on next page . . . 

7 
a lost wedding ring is lodged in a sink's pipe acting as a private 

investigator by obtaining information about "Mlle location. . . of 

lost. . . property"? NRS 648.012(2). What about a prospective employer 

who calls past employers to learn an applicant's work history? See NRS 

648.012(1) (acting as a private investigator includes obtaining 

"information with reference to . . . [t]he . . . honesty, integrity, credibility, 

knowledge, trustworthiness, efficiency, loyalty. . . reputation or character 

of any person"). 

The Legislature has not endorsed the Board's expansive view 

of what constitutes private investigation. NRS Chapter 648 contains a 

growing list of exemptions. See NRS 648.018. And in 2013, after the 

Board cited Tatalovich and this litigation ensued, the Legislature 

amended NRS 648.012 to create a specific exception for expert witnesses 

who are "retained for litigation or trial. . . and who perform [1 duties and 

tasks within his or her field of expertise that are necessary to form his or 

her opinion" related to a possible crime or tort. 6These amendments 

. . . continued 

Assemblywoman Barbara E. Buckley, Member of the Assembly Committee 

on Commerce and Labor, indicating that "[at seems unbelievable that 

somebody looking through public records could be accused of being a 

private investigator"); see also Hearing on S.B. 265 Before the Senate 

Comm. on Commerce and Labor, 75th Leg. (Nev., March 23, 2009) 

(statement of Senator Maggie Carlton, Chair of the Senate Committee on 

Commerce and Labor, noting that it "was not anyone's intention" that the 

licensing requirement be extended to journalists investigating public 

records for commercial purposes). 

6The amendment was signed on June 1, 2013, and takes effect 

October 1, 2013. A.B. 306, 77th Leg. (Nev. 2013). Of note, the 2013 

continued on next page . . . 

8 
appear to clarify, not change, the law, correcting a "doubtful [agency] 

interpretation" of a controlling statute. Pub. Emps.' Benefits Program v. 

Las Vegas Metro. Police Dep't, 124 Nev. 138, 156-57, 179 P.3d 542, 554 

(2008) (internal quotations omitted); see In re Estate of Thomas, 116 Nev. 

492, 495, 998 P.2d 560, 562 (2000) (construing amendment as clarifying a 

doubtful interpretation of an earlier statute). 

For these reasons, we reject the Board's position. NRS 

648.012 regulates those employed or acting as private investigators to 

protect public safety and welfare and the consumers of their services. Its 

licensing requirement does not apply to experts employed to give an 

opinion on some aspect(s) of a case where the expert witness performs 

duties and tasks within his or her field to verify or obtain information 

necessary to form the basis for the opinion testimony. 

Tatalovich was hired as an expert witness, and in forming his 

testimony he visited the crime scenes, took photographs and 

measurements, examined security measures, and reconstructed events. 

He also ran background checks on one of the accused in order to form an 

opinion concerning the soundness of a hiring decision. These tasks were 

. . . continued 

amendments leave intact NRS 648.012's reference to "[s] ecuring evidence 

to be used before any court, board, officer or investigating committee," as 

requiring a private investigator's license. To the extent an individual 

works to unearth facts to be used as direct evidence, as opposed to 

information to be used as the basis for expert opinion testimony, NRS 

648.060's licensing requirements may apply. 

SUPREME COURT 

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C.J. 

J. 

necessary to form the basis of his opinion testimony. And Tatalovich's 

Arizona license granted him access to the relevant databases for the 

background checks. His actions therefore fell outside the Nevada licensing 

requirement. 

We affirm. 

Hardesty 

Parraguirre 

Douglas 

■ 

Saitta 

10 

J.